September 24, 2013
On Monday, the Center for Inquiry (CFI) filed a friend-of-the-court brief in Town of Greece v. Galloway, Case No. 12-696. In this case, the U.S. Supreme Court will consider the constitutionality of official prayers in local government settings, such as invocations at city council or school board meetings. If the Court issues a broad ruling, this decision could have significant implications on church-state controversies other than legislative prayer. Download the brief here.
Looming over this case is the Court’s 1983 decision in Marsh v. Chambers, which upheld the practice of invocational prayer in the Nebraska legislature. The Marsh decision was remarkable for its lack of conventional legal analysis. Instead, the Court applied “common sense” reasoning, relying heavily on the fact that the First Congress had chaplains who opened legislative sessions with prayers. But the Marsh Court stopped short of an unqualified approval of legislative prayers by pointing out that it was not deciding whether prayers that were used to proselytize or advance a particular faith were constitutional.
The prayer practice in the town of Greece, New York, presents a situation that arguably was not resolved by Marsh. The Greece town council invited only Christian clergy before this practice was challenged, and most of the prayers were unmistakably sectarian in nature.
In its amicus brief, CFI argues that Marsh cannot be extended to local government meetings. Indeed, the reasoning behind Marsh is fundamentally flawed. The Marsh Court assumed invocations would not be divisive. That has not proven to be the case, especially as the country has become more religiously diverse, including a growing segment of nonreligious individuals. Moreover, “history” cannot immunize prayer practices at the local government level, as many of the practices were instituted fairly recently. (The town of Greece did not start its practice until 1999.) In addition, apart from Marsh, the Supreme Court has not used history as a basis for upholding government-supported religious expression. Marsh, if not overruled, should be confined to its specific facts.
Argument in this case will be held in early November and a decision is expected in June.
Joining CFI on the brief are the Secular Coalition for America and many of the Coalition’s individual members.
The brief was authored by a team of attorneys from the Washington, D. C. law firm of Arnold & Porter: Lisa S. Blatt, Daniel S. Pariser, Rosemary Szanyi and Noah L. Browne. Their work was performed pro bono, that is, without fee. CFI is deeply appreciative of the time and expertise these attorneys generously devoted to the brief.